Can I leave my employer/sponsor after I have received my visa? The short answer is that it depends. We will explore the requirement of staying with the sponsor for the following visa subclasses.
Leaving your employer when holding a Subclass 186 ENS visa
If you are thinking of leaving your employer after you have received your subclass 186 visa but is unsure of the implications, we got your covered. Let us go through what will happen if you leave your employer.
Subclass 186 Visa is a permanent visa which allows you to live, work and study in Australia indefinitely. When applying for this visa, you are required to provide the Department of Home (Department) Affairs with an employment contract. On the employment contract, it must state that the job position is available to you for at least two years. The purpose of the employment contract is to show the Department that your employer intends to sponsor you for at least two years which is a requirement of the visa.
Whilst the employment contract is binding on yourself and your employer, standard employment rules applies. That is, employee and employer are well within their rights to terminate an employment contract. So, once you have been granted the visa, it is possible for you to leave employment with your sponsor without the Department cancelling or revoking your visa.
It is not a visa condition that you stay with your sponsor for two years. Similarly, it is not a requirement that your sponsor employs you for two years. Therefore, after the visa is granted, if you or your employer’s situation changes, the Department would not penalise you for it however, the Department retains its discretion to revoke or cancel the subclass 186 visa if you provide incorrect and misleading information to the Department or you have not made a genuine effort to work in the role. The employer may also be sanctioned if the department is of the view that the application was not genuine. The adverse information could have implications for your citizenship application.
To illustrate, we will give you an example. John Smith obtained his subclass 186 visa and shortly after he informed his sponsor that he is leaving employment with them. The sponsor reports to the Department. The sponsor was able to locate a contract that was signed by the John Smith with another company before his visa was granted. In this situation, the Department would question if John Smith has provided the Department with false and misleading information with his intention to work with the sponsor.
In conclusion, whilst the Department is unlikely to cancel or revoke your visa, it is always better to do the right thing and stay with your employer. We recommend talking to us before making a decision.
Leaving your employer while on a subclass 482 – Temporary Skills Shortage Visa
Unlike the subclass 186 visa, the subclass 482 TSS visa is a temporary visa. As such, the Department has strict rules regulating applicant ending their employment. For this reason, it usually not possible to leave your employer if you would like to maintain your visa status.
All TSS visas have an 8607 condition imposed on it. To comply with the 8607 condition, the applicant must work in the nominated occupation for the business who is sponsoring them. This means that not only must you work for your sponsor, but you also cannot do or perform work that is different to your nominated occupation. For example, if the sponsor hires you to work as an Accountant (ANZSCO 221111), you cannot then be promoted and work as a Corporate General Manager (ANZSCO 111211). This may lead to a visa cancellation by the Department.
Nonetheless, it is possible to change your sponsor and leave your employment. However, your new employer is required to have a standard business sponsorship, and they must nominate you for the position. You are not required to lodge a new visa application unless your visa is expiring. If you commence work with a new employer before the nomination is approved, you are breaching your visa condition.
It is also crucial to note that the period you cease employment must not be more than 60 consecutive days. This is to provide you with time to look for another employer or explore other visa options. Your visa may be cancelled if you cannot find another employer/change visa in 60 consecutive days.
Therefore, it is best for all TSS visa holders to consider all the relevant implications before leaving your sponsor, as failure to comply with condition 8607 may lead to visa cancellation.
Leaving your employer when holding a Subclass 494 – Skilled Employer Sponsored Regional (Provisional) visa
Similar to the subclass 482 TSS visa, the Department has strict rules regulating who the applicant can work for on the 494 visa. One of the conditions on the subclass 494 visa is the condition 8608. Like the condition 8607, it states that the applicant can only work in the nominated occupation in the business that nominated them. The applicant is also required to commence work with the employer within 90 days of visa grant or on visa arrival if the applicant is outside of Australia at the time of the grant.
Changing occupation is possible; however, a new nomination is required to be approved before you can start working for your new employer. You must also not cease employment with the current sponsor for more than 90 consecutive days.
You want to change employers while holding a 408 AGEE visa
Visa holders are permitted to work in the same critical occupation and position for a different employer, but must notify the Department of any changes of employment by completing a form and emailing it DHA together with their letter of offer for each new employer and position.
Once you have notified the Department, an auto generated response will serve as confirmation of your update. Individual confirmations or updated grant notifications will not be provided.
Condition 8107 does not allow visa holders to engage in work inconsistent with the activity in relation to which the visa was granted.
During the COVID-19 pandemic, only work in agriculture, food processing, health care, aged care, disability care and child care is considered to be in a critical sector.
Your boss Can’t cancel your visa
If you’re experiencing workplace exploitation, like being underpaid, we can help. You can ask for our help without fear of visa cancellation – even if you’ve breached your work-related visa conditions. Find out more: https://www.fairwork.gov.au/find…/visa-holders-migrants
Everyone working in Australia has the same minimum rights and protections at work, including visa holders. It’s against the law for your employer to pay you less than the minimum wages under your award or agreement.
Your employer can’t cancel your visa. If your boss has threatened to cancel your visa because you’ve raised a work issue, remember that only the Department of Home Affairs can grant, refuse or cancel a visa.
We have an arrangement with the Department of Home Affairs, called the Assurance Protocol, to help visa holders. Under the Assurance Protocol, your temporary visa will not be cancelled for breaches of your work-related visa conditions if you:
- had an entitlement to work as part of your visa
- believe you have been exploited at work
- have reported your circumstances to the Fair Work Ombudsman
- are assisting the Fair Work Ombudsman’s inquiries
- commit to abiding by your visa conditions in the future
- there is no other basis for cancelling your visa (such as on national security, character, health or fraud grounds).